EN BANC

ELEAZAR P. QUINTO and G.R. No. 189698

GERINO A. TOLENTINO, JR.,
Petitioners, Present:

PUNO, C.J.,
CARPIO,
CORONA,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
- versus - LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ, and
MENDOZA, JJ.

COMMISSION ON Promulgated:
ELECTIONS,
Respondent. February 22, 2010
x ----------------------------------------------------------------------------------------x

RESOLUTION
PUNO, C.J.:

Upon a careful review of the case at bar, this Court resolves to grant the respondent Commission
on Elections’ (COMELEC) motion for reconsideration, and the movants-intervenors’ motions for
reconsideration-in-intervention, of this Court’s December 1, 2009 Decision (Decision).

The assailed Decision granted the Petition for Certiorari and Prohibition filed by Eleazar P. Quinto
and Gerino A. Tolentino, Jr. and declared as unconstitutional the second proviso in the third paragraph of
Section 13 of Republic Act No. 9369, Section 66 of the Omnibus Election Code and Section 4(a) of
COMELEC Resolution No. 8678, mainly on the ground that they violate the equal protection clause of the
Constitution and suffer from overbreadth. The assailed Decision thus paved the way for public appointive
officials to continue discharging the powers, prerogatives and functions of their office notwithstanding their
entry into the political arena.

In support of their respective motions for reconsideration, respondent COMELEC and movants-
intervenors submit the following arguments:

(1) The assailed Decision is contrary to, and/or violative of, the constitutional proscription against
the participation of public appointive officials and members of the military in partisan political
activity;
(2) The assailed provisions do not violate the equal protection clause when they accord
differential treatment to elective and appointive officials, because such differential treatment
rests on material and substantial distinctions and is germane to the purposes of the law;
(3) The assailed provisions do not suffer from the infirmity of overbreadth; and
(4) There is a compelling need to reverse the assailed Decision, as public safety and interest
demand such reversal.

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 We find the foregoing arguments meritorious.

I.
Procedural Issues

First, we shall resolve the procedural issues on the timeliness of the COMELEC’s motion for
reconsideration which was filed on December 15, 2009, as well as the propriety of the motions for
reconsideration-in-intervention which were filed after the Court had rendered its December 1, 2009
Decision.

i. Timeliness of COMELEC’s Motion for Reconsideration

Pursuant to Section 2, Rule 56-A of the 1997 Rules of Court, in relation to Section 1, Rule 52 of
the same rules, COMELEC had a period of fifteen days from receipt of notice of the assailed Decision
within which to move for its reconsideration. COMELEC received notice of the assailed Decision on
December 2, 2009, hence, had until December 17, 2009 to file a Motion for Reconsideration.

The Motion for Reconsideration of COMELEC was timely filed. It was filed on December 14,
2009. The corresponding Affidavit of Service (in substitution of the one originally submitted on December
14, 2009) was subsequently filed on December 17, 2009 – still within the reglementary period.

ii. Propriety of the Motions for Reconsideration-in-Intervention

Section 1, Rule 19 of the Rules of Court provides:

A person who has legal interest in the matter in litigation or in the success of either of the
parties, or an interest against both, or is so situated as to be adversely affected by a
distribution or other disposition of property in the custody of the court or of an officer
thereof may, with leave of court, be allowed to intervene in the action. The court shall
consider whether or not the intervention will unduly delay or prejudice the adjudication of
the rights of the original parties, and whether or not the intervenor’s rights may be fully
protected in a separate proceeding.

Pursuant to the foregoing rule, this Court has held that a motion for intervention shall be
entertained when the following requisites are satisfied: (1) the would-be intervenor shows that he has a
substantial right or interest in the case; and (2) such right or interest cannot be adequately pursued and
protected in another proceeding.

Upon the other hand, Section 2, Rule 19 of the Rules of Court provides the time within which a
motion for intervention may be filed, viz.:

SECTION 2. Time to intervene.– The motion for intervention may be filed at any time
before rendition of judgment by the trial court. A copy of the pleading-in-intervention shall
be attached to the motion and served on the original parties. (italics supplied)

This rule, however, is not inflexible. Interventions have been allowed even beyond the period
prescribed in the Rule, when demanded by the higher interest of justice. Interventions have also been
granted to afford indispensable parties, who have not been impleaded, the right to be heard even after a
decision has been rendered by the trial court, when the petition for review of the judgment has already
been submitted for decision before the Supreme Court, and even where the assailed order has already
become final and executory. In Lim v. Pacquing, the motion for intervention filed by the Republic of the
Philippines was allowed by this Court to avoid grave injustice and injury and to settle once and for all the
substantive issues raised by the parties.

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 In fine, the allowance or disallowance of a motion for intervention rests on the sound discretion of
the court after consideration of the appropriate circumstances. We stress again that Rule 19 of the Rules
of Court is a rule of procedure whose object is to make the powers of the court fully and completely
available for justice. Its purpose is not to hinder or delay, but to facilitate and promote the administration
of justice.

We rule that, with the exception of the IBP – Cebu City Chapter, all the movants-intervenors may
properly intervene in the case at bar.

First, the movants-intervenors have each sufficiently established a substantial right or interest in
the case.

As a Senator of the Republic, Senator Manuel A. Roxas has a right to challenge the December 1,
2009 Decision, which nullifies a long established law; as a voter, he has a right to intervene in a matter
that involves the electoral process; and as a public officer, he has a personal interest in maintaining the
trust and confidence of the public in its system of government.

On the other hand, former Senator Franklin M. Drilon and Tom V. Apacible are candidates in the
May 2010 elections running against appointive officials who, in view of the December 1, 2009 Decision,
have not yet resigned from their posts and are not likely to resign from their posts. They stand to be
directly injured by the assailed Decision, unless it is reversed.

Moreover, the rights or interests of said movants-intervenors cannot be adequately pursued and
protected in another proceeding. Clearly, their rights will be foreclosed if this Court’s Decision attains
finality and forms part of the laws of the land.

With regard to the IBP – Cebu City Chapter, it anchors its standing on the assertion that “this
case involves the constitutionality of elections laws for this coming 2010 National Elections,” and that
“there is a need for it to be allowed to intervene xxx so that the voice of its members in the legal
profession would also be heard before this Highest Tribunal as it resolves issues of transcendental
importance.”

Prescinding from our rule and ruling case law, we find that the IBP-Cebu City Chapter has failed
to present a specific and substantial interest sufficient to clothe it with standing to intervene in the case at
bar. Its invoked interest is, in character, too indistinguishable to justify its intervention.

We now turn to the substantive issues.

II.
Substantive Issues

The assailed Decision struck down Section 4(a) of Resolution 8678, the second proviso in the
third paragraph of Section 13 of Republic Act (RA) 9369, and Section 66 of the Omnibus Election Code,
on the following grounds:

(1) They violate the equal protection clause of the Constitution because of the differential
treatment of persons holding appointive offices and those holding elective positions;
(2) They are overbroad insofar as they prohibit the candidacy of all civil servants holding
appointive posts: (a) without distinction as to whether or not they occupy high/influential
positions in the government, and (b) they limit these civil servants’ activity regardless of
whether they be partisan or nonpartisan in character, or whether they be in the national,
municipal or barangay level; and
(3) Congress has not shown a compelling state interest to restrict the fundamental right of these
public appointive officials.

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 We grant the motions for reconsideration. We now rule that Section 4(a) of Resolution 8678,
Section 66 of the Omnibus Election Code, and the second proviso in the third paragraph of Section 13 of
RA 9369 are not unconstitutional, and accordingly reverse our December 1, 2009 Decision.

III.
Section 4(a) of COMELEC Resolution 8678 Compliant with Law

Section 4(a) of COMELEC Resolution 8678 is a faithful reflection of the present state of the law
and jurisprudence on the matter, viz.:
Incumbent Appointive Official. - Under Section 13 of RA 9369, which reiterates Section 66 of
the Omnibus Election Code, any person holding a public appointive office or position, including
active members of the Armed Forces of the Philippines, and officers and employees in
government-owned or -controlled corporations, shall be considered ipso facto resigned from his
office upon the filing of his certificate of candidacy.

Incumbent Elected Official. – Upon the other hand, pursuant to Section 14 of RA 9006 or the
Fair Election Act, which repealed Section 67 of the Omnibus Election Code and rendered
ineffective Section 11 of R.A. 8436 insofar as it considered an elected official as resigned only
upon the start of the campaign period corresponding to the positions for which they are running,
an elected official is not deemed to have resigned from his office upon the filing of his certificate
of candidacy for the same or any other elected office or position. In fine, an elected official may
run for another position without forfeiting his seat.

These laws and regulations implement Section 2(4), Article IX-B of the 1987 Constitution, which prohibits
civil service officers and employees from engaging in any electioneering or partisan political campaign.

The intention to impose a strict limitation on the participation of civil service officers and employees
in partisan political campaigns is unmistakable. The exchange between Commissioner Quesada and
Commissioner Foz during the deliberations of the Constitutional Commission is instructive:

MS. QUESADA.

xxxx

Secondly, I would like to address the issue here as provided in Section 1 (4), line 12, and
I quote: "No officer or employee in the civil service shall engage, directly or indirectly, in
any partisan political activity." This is almost the same provision as in the 1973
Constitution. However, we in the government service have actually experienced how this
provision has been violated by the direct or indirect partisan political activities of many
government officials.

So, is the Committee willing to include certain clauses that would make this provision
more strict, and which would deter its violation?

MR. FOZ. Madam President, the existing Civil Service Law and the implementing rules
on the matter are more than exhaustive enough to really prevent officers and employees
in the public service from engaging in any form of partisan political activity. But the
problem really lies in implementation because, if the head of a ministry, and even the
superior officers of offices and agencies of government will themselves violate the
constitutional injunction against partisan political activity, then no string of words that we
may add to what is now here in this draft will really implement the constitutional intent
against partisan political activity. x x x (italics supplied)

To emphasize its importance, this constitutional ban on civil service officers and employees is
presently reflected and implemented by a number of statutes. Section 46(b)(26), Chapter 7 and Section

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55, Chapter 8 – both of Subtitle A, Title I, Book V of the Administrative Code of 1987 – respectively
provide in relevant part:

Section 44. Discipline: General Provisions:

xxxx

(b) The following shall be grounds for disciplinary action:

xxxx

(26) Engaging directly or indirectly in partisan political activities by one holding

a non-political office.

xxxx

Section 55. Political Activity. — No officer or employee in the Civil Service including
members of the Armed Forces, shall engage directly or indirectly in any partisan political
activity or take part in any election except to vote nor shall he use his official authority or
influence to coerce the political activity of any other person or body. Nothing herein
provided shall be understood to prevent any officer or employee from expressing his
views on current political problems or issues, or from mentioning the names of his
candidates for public office whom he supports: Provided, That public officers and
employees holding political offices may take part in political and electoral activities but it
shall be unlawful for them to solicit contributions from their subordinates or subject them
to any of the acts involving subordinates prohibited in the Election Code.

Section 261(i) of Batas Pambansa Blg. 881 (the Omnibus Election Code) further makes intervention by
civil service officers and employees in partisan political activities an election offense, viz.:

SECTION 261. Prohibited Acts. — The following shall be guilty of an election offense:

xxxx

(i) Intervention of public officers and employees. — Any officer or employee in the civil
service, except those holding political offices; any officer, employee, or member of the
Armed Forces of the Philippines, or any police force, special forces, home defense
forces, barangay self-defense units and all other para-military units that now exist or
which may hereafter be organized who, directly or indirectly, intervenes in any election
campaign or engages in any partisan political activity, except to vote or to preserve public
order, if he is a peace officer.

The intent of both Congress and the framers of our Constitution to limit the participation of civil
service officers and employees in partisan political activities is too plain to be mistaken.

But Section 2(4), Article IX-B of the 1987 Constitution and the implementing statutes apply only
to civil servants holding apolitical offices. Stated differently, the constitutional ban does not cover
elected officials, notwithstanding the fact that “[t]he civil service embraces all branches, subdivisions,
instrumentalities, and agencies of the Government, including government-owned or controlled
corporations with original charters.” This is because elected public officials, by the very nature of their
office, engage in partisan political activities almost all year round, even outside of the campaign period.
Political partisanship is the inevitable essence of a political office, elective positions included.

The prohibition notwithstanding, civil service officers and employees are allowed to vote, as well
as express their views on political issues, or mention the names of certain candidates for public office
whom they support. This is crystal clear from the deliberations of the Constitutional Commission, viz.:

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 MS. AQUINO: Mr. Presiding Officer, my proposed amendment is on page 2, Section 1,
subparagraph 4, lines 13 and 14. On line 13, between the words "any" and "partisan,"
add the phrase ELECTIONEERING AND OTHER; and on line 14, delete the word
"activity" and in lieu thereof substitute the word CAMPAIGN.

May I be allowed to explain my proposed amendment?

THE PRESIDING OFFICER (Mr. Treñas): Commissioner Aquino may proceed.

MS. AQUINO: The draft as presented by the Committee deleted the phrase "except to
vote" which was adopted in both the 1935 and 1973 Constitutions. The phrase "except to
vote" was not intended as a guarantee to the right to vote but as a qualification of the
general prohibition against taking part in elections.

Voting is a partisan political activity. Unless it is explicitly provided for as an exception to

this prohibition, it will amount to disenfranchisement. We know that suffrage, although
plenary, is not an unconditional right. In other words, the Legislature can always pass a
statute which can withhold from any class the right to vote in an election, if public interest
so required. I would only like to reinstate the qualification by specifying the prohibited acts
so that those who may want to vote but who are likewise prohibited from participating in
partisan political campaigns or electioneering may vote.

MR. FOZ: There is really no quarrel over this point, but please understand that there
was no intention on the part of the Committee to disenfranchise any government official
or employee. The elimination of the last clause of this provision was precisely intended to
protect the members of the civil service in the sense that they are not being deprived of
the freedom of expression in a political contest. The last phrase or clause might have
given the impression that a government employee or worker has no right whatsoever in
an election campaign except to vote, which is not the case. They are still free to express
their views although the intention is not really to allow them to take part actively in a
political campaign.

IV.
Section 4(a) of Resolution 8678, Section 13 of RA 9369, and
Section 66 of the Omnibus Election Code Do Not Violate the
Equal Protection Clause

We now hold that Section 4(a) of Resolution 8678, Section 66 of the Omnibus Election Code, and
the second proviso in the third paragraph of Section 13 of RA 9369 are not violative of the equal
protection clause of the Constitution.

i. Fariñas, et al. v. Executive Secretary, et al. is Controlling

In truth, this Court has already ruled squarely on whether these deemed-resigned provisions
challenged in the case at bar violate the equal protection clause of the Constitution in Fariñas, et al. v.
Executive Secretary, et al.

In Fariñas, the constitutionality of Section 14 of the Fair Election Act, in relation to Sections 66
and 67 of the Omnibus Election Code, was assailed on the ground, among others, that it unduly
discriminates against appointive officials. As Section 14 repealed Section 67 (i.e., the deemed-resigned
provision in respect of elected officials) of the Omnibus Election Code, elected officials are no longer
considered ipso facto resigned from their respective offices upon their filing of certificates of candidacy. In
contrast, since Section 66 was not repealed, the limitation on appointive officials continues to be operative
– they are deemed resigned when they file their certificates of candidacy.

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 The petitioners in Fariñas thus brought an equal protection challenge against Section 14, with the
end in view of having the deemed-resigned provisions “apply equally” to both elected and appointive
officials. We held, however, that the legal dichotomy created by the Legislature is a reasonable
classification, as there are material and significant distinctions between the two classes of officials.
Consequently, the contention that Section 14 of the Fair Election Act, in relation to Sections 66 and 67 of
the Omnibus Election Code, infringed on the equal protection clause of the Constitution, failed muster.
We ruled:

The petitioners' contention, that the repeal of Section 67 of the Omnibus Election
Code pertaining to elective officials gives undue benefit to such officials as against the
appointive ones and violates the equal protection clause of the constitution, is tenuous.

The equal protection of the law clause in the Constitution is not absolute, but is
subject to reasonable classification. If the groupings are characterized by substantial
distinctions that make real differences, one class may be treated and regulated differently
from the other. The Court has explained the nature of the equal protection guarantee in
this manner:

The equal protection of the law clause is against undue favor and
individual or class privilege, as well as hostile discrimination or the
oppression of inequality. It is not intended to prohibit legislation which is
limited either in the object to which it is directed or by territory within
which it is to operate. It does not demand absolute equality among
residents; it merely requires that all persons shall be treated alike, under
like circumstances and conditions both as to privileges conferred and
liabilities enforced. The equal protection clause is not infringed by
legislation which applies only to those persons falling within a specified
class, if it applies alike to all persons within such class, and reasonable
grounds exist for making a distinction between those who fall within such
class and those who do not.

Substantial distinctions clearly exist between elective officials and appointive

officials. The former occupy their office by virtue of the mandate of the electorate. They
are elected to an office for a definite term and may be removed therefrom only upon
stringent conditions. On the other hand, appointive officials hold their office by virtue of
their designation thereto by an appointing authority. Some appointive officials hold their
office in a permanent capacity and are entitled to security of tenure while others serve at
the pleasure of the appointing authority.

Another substantial distinction between the two sets of officials is that under
Section 55, Chapter 8, Title I, Subsection A. Civil Service Commission, Book V of the
Administrative Code of 1987 (Executive Order No. 292), appointive officials, as officers
and employees in the civil service, are strictly prohibited from engaging in any partisan
political activity or take (sic) part in any election except to vote. Under the same provision,
elective officials, or officers or employees holding political offices, are obviously expressly
allowed to take part in political and electoral activities.

By repealing Section 67 but retaining Section 66 of the Omnibus Election Code,

the legislators deemed it proper to treat these two classes of officials differently with
respect to the effect on their tenure in the office of the filing of the certificates of
candidacy for any position other than those occupied by them. Again, it is not within the
power of the Court to pass upon or look into the wisdom of this classification.

Since the classification justifying Section 14 of Rep. Act No. 9006, i.e., elected
officials vis-à-vis appointive officials, is anchored upon material and significant

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 distinctions and all the persons belonging under the same classification are similarly
treated, the equal protection clause of the Constitution is, thus, not infringed.

The case at bar is a crass attempt to resurrect a dead issue. The miracle is that our assailed
Decision gave it new life. We ought to be guided by the doctrine of stare decisis et non quieta movere.
This doctrine, which is really “adherence to precedents,” mandates that once a case has been decided
one way, then another case involving exactly the same point at issue should be decided in the same
manner. This doctrine is one of policy grounded on the necessity for securing certainty and stability of
judicial decisions. As the renowned jurist Benjamin Cardozo stated in his treatise The Nature of the
Judicial Process:

It will not do to decide the same question one way between one set of litigants and the
opposite way between another. “If a group of cases involves the same point, the parties
expect the same decision. It would be a gross injustice to decide alternate cases on
opposite principles. If a case was decided against me yesterday when I was a defendant,
I shall look for the same judgment today if I am plaintiff. To decide differently would raise
a feeling of resentment and wrong in my breast; it would be an infringement, material and
moral, of my rights." Adherence to precedent must then be the rule rather than the
exception if litigants are to have faith in the even-handed administration of justice in the
courts.

Our Fariñas ruling on the equal protection implications of the deemed-resigned provisions cannot
be minimalized as mere obiter dictum. It is trite to state that an adjudication on any point within the issues
presented by the case cannot be considered as obiter dictum. This rule applies to all pertinent questions
that are presented and resolved in the regular course of the consideration of the case and lead up to the
final conclusion, and to any statement as to the matter on which the decision is predicated. For that
reason, a point expressly decided does not lose its value as a precedent because the disposition of the
case is, or might have been, made on some other ground; or even though, by reason of other points in the
case, the result reached might have been the same if the court had held, on the particular point, otherwise
than it did. As we held in Villanueva, Jr. v. Court of Appeals, et al.:

… A decision which the case could have turned on is not regarded as obiter dictum
merely because, owing to the disposal of the contention, it was necessary to consider
another question, nor can an additional reason in a decision, brought forward after the
case has been disposed of on one ground, be regarded as dicta. So, also, where a case
presents two (2) or more points, any one of which is sufficient to determine the ultimate
issue, but the court actually decides all such points, the case as an authoritative
precedent as to every point decided, and none of such points can be regarded as having
the status of a dictum, and one point should not be denied authority merely because
another point was more dwelt on and more fully argued and considered, nor does a
decision on one proposition make statements of the court regarding other propositions
dicta. (italics supplied)

ii. Classification Germane to the Purposes of the Law

The Fariñas ruling on the equal protection challenge stands on solid ground even if reexamined.

To start with, the equal protection clause does not require the universal application of the laws to
all persons or things without distinction. What it simply requires is equality among equals as determined
according to a valid classification. The test developed by jurisprudence here and yonder is that of
reasonableness, which has four requisites:
(1) The classification rests on substantial distinctions;
(2) It is germane to the purposes of the law;
(3) It is not limited to existing conditions only; and
(4) It applies equally to all members of the same class.

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 Our assailed Decision readily acknowledged that these deemed-resigned provisions satisfy the
first, third and fourth requisites of reasonableness. It, however, proffers the dubious conclusion that the
differential treatment of appointive officials vis-à-vis elected officials is not germane to the purpose of the
law, because “whether one holds an appointive office or an elective one, the evils sought to be prevented
by the measure remain,” viz.:

… For example, the Executive Secretary, or any Member of the Cabinet for that matter,
could wield the same influence as the Vice-President who at the same time is appointed
to a Cabinet post (in the recent past, elected Vice-Presidents were appointed to take
charge of national housing, social welfare development, interior and local government,
and foreign affairs). With the fact that they both head executive offices, there is no valid
justification to treat them differently when both file their [Certificates of Candidacy] for the
elections. Under the present state of our law, the Vice-President, in the example, running
this time, let us say, for President, retains his position during the entire election period
and can still use the resources of his office to support his campaign.

Sad to state, this conclusion conveniently ignores the long-standing rule that to remedy an
injustice, the Legislature need not address every manifestation of the evil at once; it may proceed “one
step at a time.” In addressing a societal concern, it must invariably draw lines and make choices, thereby
creating some inequity as to those included or excluded. Nevertheless, as long as “the bounds of
reasonable choice” are not exceeded, the courts must defer to the legislative judgment. We may not strike
down a law merely because the legislative aim would have been more fully achieved by expanding the
class. Stated differently, the fact that a legislative classification, by itself, is underinclusive will not render it
unconstitutionally arbitrary or invidious. There is no constitutional requirement that regulation must reach
each and every class to which it might be applied; that the Legislature must be held rigidly to the choice of
regulating all or none.

Thus, any person who poses an equal protection challenge must convincingly show that the law
creates a classification that is “palpably arbitrary or capricious.” He must refute all possible rational bases
for the differing treatment, whether or not the Legislature cited those bases as reasons for the enactment,
such that the constitutionality of the law must be sustained even if the reasonableness of the classification
is “fairly debatable.” In the case at bar, the petitioners failed – and in fact did not even attempt – to
discharge this heavy burden. Our assailed Decision was likewise silent as a sphinx on this point even
while we submitted the following thesis:

... [I]t is not sufficient grounds for invalidation that we may find that the statute’s
distinction is unfair, underinclusive, unwise, or not the best solution from a public-policy
standpoint; rather, we must find that there is no reasonably rational reason for the
differing treatment.

In the instant case, is there a rational justification for excluding elected officials
from the operation of the deemed resigned provisions? I submit that there is.

An election is the embodiment of the popular will, perhaps the purest expression
of the sovereign power of the people. It involves the choice or selection of candidates to
public office by popular vote. Considering that elected officials are put in office by their
constituents for a definite term, it may justifiably be said that they were excluded from
the ambit of the deemed resigned provisions in utmost respect for the mandate of the
sovereign will. In other words, complete deference is accorded to the will of the electorate
that they be served by such officials until the end of the term for which they were elected.
In contrast, there is no such expectation insofar as appointed officials are concerned.

The dichotomized treatment of appointive and elective officials is therefore

germane to the purposes of the law. For the law was made not merely to preserve
the integrity, efficiency, and discipline of the public service; the Legislature, whose
wisdom is outside the rubric of judicial scrutiny, also thought it wise to balance

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 this with the competing, yet equally compelling, interest of deferring to the
sovereign will. (emphasis in the original)

In fine, the assailed Decision would have us “equalize the playing field” by invalidating provisions
of law that seek to restrain the evils from running riot. Under the pretext of equal protection, it would favor
a situation in which the evils are unconfined and vagrant, existing at the behest of both appointive and
elected officials, over another in which a significant portion thereof is contained. The absurdity of that
position is self-evident, to say the least.

The concern, voiced by our esteemed colleague, Mr. Justice Nachura, in his dissent, that elected
officials (vis-à-vis appointive officials) have greater political clout over the electorate, is indeed a matter
worth exploring – but not by this Court. Suffice it to say that the remedy lies with the Legislature. It is the
Legislature that is given the authority, under our constitutional system, to balance competing interests and
thereafter make policy choices responsive to the exigencies of the times. It is certainly within the
Legislature’s power to make the deemed-resigned provisions applicable to elected officials, should it later
decide that the evils sought to be prevented are of such frequency and magnitude as to tilt the balance in
favor of expanding the class. This Court cannot and should not arrogate unto itself the power to ascertain
and impose on the people the best state of affairs from a public policy standpoint.

iii. Mancuso v. Taft Has Been Overruled

Finding no Philippine jurisprudence to prop up its equal protection ruling, our assailed Decision
adverted to, and extensively cited, Mancuso v. Taft. This was a decision of the First Circuit of the United
States Court of Appeals promulgated in March 1973, which struck down as unconstitutional a similar
statutory provision. Pathetically, our assailed Decision, relying on Mancuso, claimed:

(1) The right to run for public office is “inextricably linked” with two fundamental freedoms –
freedom of expression and association;
(2) Any legislative classification that significantly burdens this fundamental right must be
subjected to strict equal protection review; and
(3) While the state has a compelling interest in maintaining the honesty and impartiality of its
public work force, the deemed-resigned provisions pursue their objective in a far too heavy-
handed manner as to render them unconstitutional.

It then concluded with the exhortation that since “the Americans, from whom we copied the provision in
question, had already stricken down a similar measure for being unconstitutional[,] it is high-time that we,
too, should follow suit.”

Our assailed Decision’s reliance on Mancuso is completely misplaced. We cannot blink away the
fact that the United States Supreme Court effectively overruled Mancuso three months after its
promulgation by the United States Court of Appeals. In United States Civil Service Commission, et al.
v. National Association of Letter Carriers AFL-CIO, et al. and Broadrick, et al. v. State of
Oklahoma, et al., the United States Supreme Court was faced with the issue of whether statutory
provisions prohibiting federal and state employees from taking an active part in political management or in
political campaigns were unconstitutional as to warrant facial invalidation. Violation of these provisions
results in dismissal from employment and possible criminal sanctions.

The Court declared these provisions compliant with the equal protection clause. It held that (i) in
regulating the speech of its employees, the state as employer has interests that differ significantly from
those it possesses in regulating the speech of the citizenry in general; (ii) the courts must therefore
balance the legitimate interest of employee free expression against the interests of the employer in
promoting efficiency of public services; (iii) if the employees’ expression interferes with the maintenance
of efficient and regularly functioning services, the limitation on speech is not unconstitutional; and (iv) the
Legislature is to be given some flexibility or latitude in ascertaining which positions are to be covered by
any statutory restrictions. Therefore, insofar as government employees are concerned, the correct

10
standard of review is an interest-balancing approach, a means-end scrutiny that examines the closeness
of fit between the governmental interests and the prohibitions in question.

Letter Carriers elucidated on these principles, as follows:

Until now, the judgment of Congress, the Executive, and the country appears to
have been that partisan political activities by federal employees must be limited if the
Government is to operate effectively and fairly, elections are to play their proper part in
representative government, and employees themselves are to be sufficiently free from
improper influences. The restrictions so far imposed on federal employees are not aimed
at particular parties, groups, or points of view, but apply equally to all partisan activities of
the type described. They discriminate against no racial, ethnic, or religious minorities. Nor
do they seek to control political opinions or beliefs, or to interfere with or influence
anyone's vote at the polls.

But, as the Court held in Pickering v. Board of Education, the government has an
interest in regulating the conduct and ‘the speech of its employees that differ(s)
significantly from those it possesses in connection with regulation of the speech of the
citizenry in general. The problem in any case is to arrive at a balance between the
interests of the (employee), as a citizen, in commenting upon matters of public concern
and the interest of the (government), as an employer, in promoting the efficiency of the
public services it performs through its employees.’ Although Congress is free to strike a
different balance than it has, if it so chooses, we think the balance it has so far struck is
sustainable by the obviously important interests sought to be served by the limitations on
partisan political activities now contained in the Hatch Act.

It seems fundamental in the first place that employees in the Executive Branch of
the Government, or those working for any of its agencies, should administer the law in
accordance with the will of Congress, rather than in accordance with their own or the will
of a political party. They are expected to enforce the law and execute the programs of the
Government without bias or favoritism for or against any political party or group or the
members thereof. A major thesis of the Hatch Act is that to serve this great end of
Government-the impartial execution of the laws-it is essential that federal employees, for
example, not take formal positions in political parties, not undertake to play substantial
roles in partisan political campaigns, and not run for office on partisan political tickets.
Forbidding activities like these will reduce the hazards to fair and effective government.

There is another consideration in this judgment: it is not only important that the
Government and its employees in fact avoid practicing political justice, but it is also
critical that they appear to the public to be avoiding it, if confidence in the system of
representative Government is not to be eroded to a disastrous extent.

Another major concern of the restriction against partisan activities by federal

employees was perhaps the immediate occasion for enactment of the Hatch Act in 1939.
That was the conviction that the rapidly expanding Government work force should not be
employed to build a powerful, invincible, and perhaps corrupt political machine. The
experience of the 1936 and 1938 campaigns convinced Congress that these dangers
were sufficiently real that substantial barriers should be raised against the party in power-
or the party out of power, for that matter-using the thousands or hundreds of thousands
of federal employees, paid for at public expense, to man its political structure and political
campaigns.

A related concern, and this remains as important as any other, was to further
serve the goal that employment and advancement in the Government service not depend
on political performance, and at the same time to make sure that Government employees
would be free from pressure and from express or tacit invitation to vote in a certain way

11
 or perform political chores in order to curry favor with their superiors rather than to act out
their own beliefs. It may be urged that prohibitions against coercion are sufficient
protection; but for many years the joint judgment of the Executive and Congress has
been that to protect the rights of federal employees with respect to their jobs and their
political acts and beliefs it is not enough merely to forbid one employee to attempt to
influence or coerce another. For example, at the hearings in 1972 on proposed legislation
for liberalizing the prohibition against political activity, the Chairman of the Civil Service
Commission stated that ‘the prohibitions against active participation in partisan political
management and partisan political campaigns constitute the most significant safeguards
against coercion . . ..’ Perhaps Congress at some time will come to a different view of the
realities of political life and Government service; but that is its current view of the matter,
and we are not now in any position to dispute it. Nor, in our view, does the Constitution
forbid it.

Neither the right to associate nor the right to participate in political activities is
absolute in any event. x x x

xxxx

As we see it, our task is not to destroy the Act if we can, but to construe it, if
consistent with the will of Congress, so as to comport with constitutional limitations.
(italics supplied)

Broadrick likewise definitively stated that the assailed statutory provision is constitutionally
permissible, viz.:

Appellants do not question Oklahoma's right to place even-handed restrictions on

the partisan political conduct of state employees. Appellants freely concede that such
restrictions serve valid and important state interests, particularly with respect to attracting
greater numbers of qualified people by insuring their job security, free from the
vicissitudes of the elective process, and by protecting them from ‘political extortion.’
Rather, appellants maintain that however permissible, even commendable, the goals of s
818 may be, its language is unconstitutionally vague and its prohibitions too broad in their
sweep, failing to distinguish between conduct that may be proscribed and conduct that
must be permitted. For these and other reasons, appellants assert that the sixth and
seventh paragraphs of s 818 are void in toto and cannot be enforced against them or
anyone else.

We have held today that the Hatch Act is not impermissibly vague. We have little
doubt that s 818 is similarly not so vague that ‘men of common intelligence must
necessarily guess at its meaning.’ Whatever other problems there are with s 818, it is all
but frivolous to suggest that the section fails to give adequate warning of what activities it
proscribes or fails to set out ‘explicit standards' for those who must apply it. In the plainest
language, it prohibits any state classified employee from being ‘an officer or member’ of a
‘partisan political club’ or a candidate for ‘any paid public office.’ It forbids solicitation of
contributions ‘for any political organization, candidacy or other political purpose’ and
taking part ‘in the management or affairs of any political party or in any political
campaign.’ Words inevitably contain germs of uncertainty and, as with the Hatch Act,
there may be disputes over the meaning of such terms in s 818 as ‘partisan,’ or ‘take part
in,’ or ‘affairs of’ political parties. But what was said in Letter Carriers, is applicable here:
‘there are limitations in the English language with respect to being both specific and
manageably brief, and it seems to us that although the prohibitions may not satisfy those
intent on finding fault at any cost, they are set out in terms that the ordinary person
exercising ordinary common sense can sufficiently understand and comply with, without
sacrifice to the public interest.' x x x

12
 xxxx

[Appellants] nevertheless maintain that the statute is overbroad and purports to

reach protected, as well as unprotected conduct, and must therefore be struck down on
its face and held to be incapable of any constitutional application. We do not believe that
the overbreadth doctrine may appropriately be invoked in this manner here.

xxxx

The consequence of our departure from traditional rules of standing in the First
Amendment area is that any enforcement of a statute thus placed at issue is totally
forbidden until and unless a limiting construction or partial invalidation so narrows it as to
remove the seeming threat or deterrence to constitutionally protected expression.
Application of the overbreadth doctrine in this manner is, manifestly, strong medicine. It
has been employed by the Court sparingly and only as a last resort. x x x

x x x But the plain import of our cases is, at the very least, that facial over-breadth
adjudication is an exception to our traditional rules of practice and that its function, a
limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids
the State to sanction moves from ‘pure speech’ toward conduct and that conduct-even if
expressive-falls within the scope of otherwise valid criminal laws that reflect legitimate
state interests in maintaining comprehensive controls over harmful, constitutionally
unprotected conduct. Although such laws, if too broadly worded, may deter protected
speech to some unknown extent, there comes a point where that effect-at best a
prediction-cannot, with confidence, justify invalidating a statute on its face and so
prohibiting a State from enforcing the statute against conduct that is admittedly within its
power to proscribe. To put the matter another way, particularly where conduct and not
merely speech is involved, we believe that the overbreadth of a statute must not only be
real, but substantial as well, judged in relation to the statute's plainly legitimate sweep. It
is our view that s 818 is not substantially overbroad and that whatever overbreadth may
exist should be cured through case-by-case analysis of the fact situations to which its
sanctions, assertedly, may not be applied.

Unlike ordinary breach-of-the peace statutes or other broad regulatory acts, s

818 is directed, by its terms, at political expression which if engaged in by private
persons would plainly be protected by the First and Fourteenth Amendments. But at the
same time, s 818 is not a censorial statute, directed at particular groups or viewpoints.
The statute, rather, seeks to regulate political activity in an even-handed and neutral
manner. As indicted, such statutes have in the past been subject to a less exacting
overbreadth scrutiny. Moreover, the fact remains that s 818 regulates a substantial
spectrum of conduct that is as manifestly subject to state regulation as the public peace
or criminal trespass. This much was established in United Public Workers v. Mitchell, and
has been unhesitatingly reaffirmed today in Letter Carriers. Under the decision in Letter
Carriers, there is no question that s 818 is valid at least insofar as it forbids classified
employees from: soliciting contributions for partisan candidates, political parties, or other
partisan political purposes; becoming members of national, state, or local committees of
political parties, or officers or committee members in partisan political clubs, or
candidates for any paid public office; taking part in the management or affairs of any
political party's partisan political campaign; serving as delegates or alternates to
caucuses or conventions of political parties; addressing or taking an active part in
partisan political rallies or meetings; soliciting votes or assisting voters at the polls or
helping in a partisan effort to get voters to the polls; participating in the distribution of
partisan campaign literature; initiating or circulating partisan nominating petitions; or
riding in caravans for any political party or partisan political candidate.

13
 x x x It may be that such restrictions are impermissible and that s 818 may be
susceptible of some other improper applications. But, as presently construed, we do not
believe that s 818 must be discarded in toto because some persons’ arguably protected
conduct may or may not be caught or chilled by the statute. Section 818 is not
substantially overbroad and it not, therefore, unconstitutional on its face. (italics supplied)

It bears stressing that, in his Dissenting Opinion, Mr. Justice Nachura does not deny the principles
enunciated in Letter Carriers and Broadrick. He would hold, nonetheless, that these cases cannot be
interpreted to mean a reversal of Mancuso, since they “pertain to different types of laws and were
decided based on a different set of facts,” viz.:

In Letter Carriers, the plaintiffs alleged that the Civil Service Commission was
enforcing, or threatening to enforce, the Hatch Act’s prohibition against “active
participation in political management or political campaigns.” The plaintiffs desired to
campaign for candidates for public office, to encourage and get federal employees to run
for state and local offices, to participate as delegates in party conventions, and to hold
office in a political club.

In Broadrick, the appellants sought the invalidation for being vague and
overbroad a provision in the (sic) Oklahoma’s Merit System of Personnel Administration
Act restricting the political activities of the State’s classified civil servants, in much the
same manner as the Hatch Act proscribed partisan political activities of federal
employees. Prior to the commencement of the action, the appellants actively participated
in the 1970 reelection campaign of their superior, and were administratively charged for
asking other Corporation Commission employees to do campaign work or to give
referrals to persons who might help in the campaign, for soliciting money for the
campaign, and for receiving and distributing campaign posters in bulk.

Mancuso, on the other hand, involves, as aforesaid, an automatic resignation

provision. Kenneth Mancuso, a full time police officer and classified civil service
employee of the City of Cranston, filed as a candidate for nomination as representative to
the Rhode Island General Assembly. The Mayor of Cranston then began the process of
enforcing the resign-to-run provision of the City Home Rule Charter.

Clearly, as the above-cited US cases pertain to different types of laws and were
decided based on a different set of facts, Letter Carriers and Broadrick cannot be
interpreted to mean a reversal of Mancuso. x x x (italics in the original)

We hold, however, that his position is belied by a plain reading of these cases. Contrary to his
claim, Letter Carriers, Broadrick and Mancuso all concerned the constitutionality of resign-to-run
laws, viz.:

(1) Mancuso involved a civil service employee who filed as a candidate for nomination as
representative to the Rhode Island General Assembly. He assailed the constitutionality of
§14.09(c) of the City Home Rule Charter, which prohibits “continuing in the classified service
of the city after becoming a candidate for nomination or election to any public office.”

(2) Letter Carriers involved plaintiffs who alleged that the Civil Service Commission was
enforcing, or threatening to enforce, the Hatch Act’s prohibition against “active participation in
political management or political campaigns” with respect to certain defined activities in which
they desired to engage. The plaintiffs relevant to this discussion are:

(a) The National Association of Letter Carriers, which alleged that its members
were desirous of, among others, running in local elections for offices such as
school board member, city council member or mayor;

14
 (b) Plaintiff Gee, who alleged that he desired to, but did not, file as a candidate
for the office of Borough Councilman in his local community for fear that his
participation in a partisan election would endanger his job; and
(c) Plaintiff Myers, who alleged that he desired to run as a Republican candidate
in the 1971 partisan election for the mayor of West Lafayette, Indiana, and
that he would do so except for fear of losing his job by reason of violation of
the Hatch Act.

The Hatch Act defines “active participation in political management or political campaigns” by
cross-referring to the rules made by the Civil Service Commission. The rule pertinent to our
inquiry states:

30. Candidacy for local office: Candidacy for a nomination or for election
to any National, State, county, or municipal office is not permissible. The
prohibition against political activity extends not merely to formal
announcement of candidacy but also to the preliminaries leading to such
announcement and to canvassing or soliciting support or doing or
permitting to be done any act in furtherance of candidacy. The fact that
candidacy, is merely passive is immaterial; if an employee acquiesces in
the efforts of friends in furtherance of such candidacy such acquiescence
constitutes an infraction of the prohibitions against political activity.
(italics supplied)

Section 9(b) requires the immediate removal of violators and forbids the use of appropriated
funds thereafter to pay compensation to these persons.

(3) Broadrick was a class action brought by certain Oklahoma state employees seeking a
declaration of unconstitutionality of two sub-paragraphs of Section 818 of Oklahoma’s Merit
System of Personnel Administration Act. Section 818 (7), the paragraph relevant to this
discussion, states that “[n]o employee in the classified service shall be … a candidate for
nomination or election to any paid public office…” Violation of Section 818 results in dismissal
from employment, possible criminal sanctions and limited state employment ineligibility.

Consequently, it cannot be denied that Letter Carriers and Broadrick effectively overruled
Mancuso. By no stretch of the imagination could Mancuso still be held operative, as Letter Carriers and
Broadrick (i) concerned virtually identical resign-to-run laws, and (ii) were decided by a superior court,
the United States Supreme Court. It was thus not surprising for the First Circuit Court of Appeals – the
same court that decided Mancuso – to hold categorically and emphatically in Magill v. Lynch that
Mancuso is no longer good law. As we priorly explained:

Magill involved Pawtucket, Rhode Island firemen who ran for city office in 1975.
Pawtucket’s “Little Hatch Act” prohibits city employees from engaging in a broad range of
political activities. Becoming a candidate for any city office is specifically proscribed, the
violation being punished by removal from office or immediate dismissal. The firemen
brought an action against the city officials on the ground that that the provision of the city
charter was unconstitutional. However, the court, fully cognizant of Letter Carriers
and Broadrick, took the position that Mancuso had since lost considerable vitality.
It observed that the view that political candidacy was a fundamental interest which
could be infringed upon only if less restrictive alternatives were not available, was
a position which was no longer viable, since the Supreme Court (finding that the
government’s interest in regulating both the conduct and speech of its employees
differed significantly from its interest in regulating those of the citizenry in general)
had given little weight to the argument that prohibitions against the coercion of
government employees were a less drastic means to the same end, deferring to the
judgment of Congress, and applying a “balancing” test to determine whether limits
on political activity by public employees substantially served government interests

15
 which were “important” enough to outweigh the employees’ First Amendment
rights.

It must be noted that the Court of Appeals ruled in this manner even though the
election in Magill was characterized as nonpartisan, as it was reasonable for the city to
fear, under the circumstances of that case, that politically active bureaucrats might use
their official power to help political friends and hurt political foes. Ruled the court:

The question before us is whether Pawtucket's charter provision,

which bars a city employee's candidacy in even a nonpartisan city
election, is constitutional. The issue compels us to extrapolate two recent
Supreme Court decisions, Civil Service Comm'n v. Nat'l Ass'n of Letter
Carriers and Broadrick v. Oklahoma. Both dealt with laws barring civil
servants from partisan political activity. Letter Carriers reaffirmed United
Public Workers v. Mitchell, upholding the constitutionality of the Hatch
Act as to federal employees. Broadrick sustained Oklahoma's “Little
Hatch Act” against constitutional attack, limiting its holding to Oklahoma's
construction that the Act barred only activity in partisan politics. In
Mancuso v. Taft, we assumed that proscriptions of candidacy in
nonpartisan elections would not be constitutional. Letter Carriers and
Broadrick compel new analysis.

xxxx

What we are obligated to do in this case, as the district court

recognized, is to apply the Court’s interest balancing approach to the
kind of nonpartisan election revealed in this record. We believe that the
district court found more residual vigor in our opinion in Mancuso v. Taft
than remains after Letter Carriers. We have particular reference to our
view that political candidacy was a fundamental interest which could be
trenched upon only if less restrictive alternatives were not available.
While this approach may still be viable for citizens who are not
government employees, the Court in Letter Carriers recognized that the
government's interest in regulating both the conduct and speech of its
employees differs significantly from its interest in regulating those of the
citizenry in general. Not only was United Public Workers v. Mitchell
"unhesitatingly" reaffirmed, but the Court gave little weight to the
argument that prohibitions against the coercion of government
employees were a less drastic means to the same end, deferring to the
judgment of the Congress. We cannot be more precise than the Third
Circuit in characterizing the Court's approach as "some sort of 'balancing'
process". It appears that the government may place limits on
campaigning by public employees if the limits substantially serve
government interests that are "important" enough to outweigh the
employees' First Amendment rights. x x x (italics supplied)

Upholding thus the constitutionality of the law in question, the Magill court
detailed the major governmental interests discussed in Letter Carriers and applied them
to the Pawtucket provision as follows:

In Letter Carriers[,] the first interest identified by the Court was

that of an efficient government, faithful to the Congress rather than to
party. The district court discounted this interest, reasoning that
candidates in a local election would not likely be committed to a state or
national platform. This observation undoubtedly has substance insofar as
allegiance to broad policy positions is concerned. But a different kind of

16
 possible political intrusion into efficient administration could be thought to
threaten municipal government: not into broad policy decisions, but into
the particulars of administration favoritism in minute decisions affecting
welfare, tax assessments, municipal contracts and purchasing, hiring,
zoning, licensing, and inspections. Just as the Court in Letter Carriers
identified a second governmental interest in the avoidance of the
appearance of "political justice" as to policy, so there is an equivalent
interest in avoiding the appearance of political preferment in privileges,
concessions, and benefits. The appearance (or reality) of favoritism that
the charter's authors evidently feared is not exorcised by the nonpartisan
character of the formal election process. Where, as here, party support is
a key to successful campaigning, and party rivalry is the norm, the city
might reasonably fear that politically active bureaucrats would use their
official power to help political friends and hurt political foes. This is not to
say that the city's interest in visibly fair and effective administration
necessarily justifies a blanket prohibition of all employee campaigning; if
parties are not heavily involved in a campaign, the danger of favoritism is
less, for neither friend nor foe is as easily identified.

A second major governmental interest identified in Letter

Carriers was avoiding the danger of a powerful political machine. The
Court had in mind the large and growing federal bureaucracy and its
partisan potential. The district court felt this was only a minor threat since
parties had no control over nominations. But in fact candidates sought
party endorsements, and party endorsements proved to be highly
effective both in determining who would emerge from the primary
election and who would be elected in the final election. Under the
prevailing customs, known party affiliation and support were highly
significant factors in Pawtucket elections. The charter's authors might
reasonably have feared that a politically active public work force would
give the incumbent party, and the incumbent workers, an unbreakable
grasp on the reins of power. In municipal elections especially, the small
size of the electorate and the limited powers of local government may
inhibit the growth of interest groups powerful enough to outbalance the
weight of a partisan work force. Even when nonpartisan issues and
candidacies are at stake, isolated government employees may seek to
influence voters or their co-workers improperly; but a more real danger is
that a central party structure will mass the scattered powers of
government workers behind a single party platform or slate. Occasional
misuse of the public trust to pursue private political ends is tolerable,
especially because the political views of individual employees may
balance each other out. But party discipline eliminates this diversity and
tends to make abuse systematic. Instead of a handful of employees
pressured into advancing their immediate superior's political ambitions,
the entire government work force may be expected to turn out for many
candidates in every election. In Pawtucket, where parties are a
continuing presence in political campaigns, a carefully orchestrated use
of city employees in support of the incumbent party's candidates is
possible. The danger is scarcely lessened by the openness of
Pawtucket's nominating procedure or the lack of party labels on its
ballots.

The third area of proper governmental interest in Letter Carriers

was ensuring that employees achieve advancement on their merits and
that they be free from both coercion and the prospect of favor from
political activity. The district court did not address this factor, but looked

17
 only to the possibility of a civil servant using his position to influence
voters, and held this to be no more of a threat than in the most
nonpartisan of elections. But we think that the possibility of coercion of
employees by superiors remains as strong a factor in municipal elections
as it was in Letter Carriers. Once again, it is the systematic and
coordinated exploitation of public servants for political ends that a
legislature is most likely to see as the primary threat of employees' rights.
Political oppression of public employees will be rare in an entirely
nonpartisan system. Some superiors may be inclined to ride herd on the
politics of their employees even in a nonpartisan context, but without
party officials looking over their shoulders most supervisors will prefer to
let employees go their own ways.

In short, the government may constitutionally restrict its

employees' participation in nominally nonpartisan elections if political
parties play a large role in the campaigns. In the absence of substantial
party involvement, on the other hand, the interests identified by the
Letter Carriers Court lose much of their force. While the employees' First
Amendment rights would normally outbalance these diminished interests,
we do not suggest that they would always do so. Even when parties are
absent, many employee campaigns might be thought to endanger at
least one strong public interest, an interest that looms larger in the
context of municipal elections than it does in the national elections
considered in Letter Carriers. The city could reasonably fear the prospect
of a subordinate running directly against his superior or running for a
position that confers great power over his superior. An employee of a
federal agency who seeks a Congressional seat poses less of a direct
challenge to the command and discipline of his agency than a fireman or
policeman who runs for mayor or city council. The possibilities of internal
discussion, cliques, and political bargaining, should an employee gather
substantial political support, are considerable. (citations omitted)

The court, however, remanded the case to the district court for further
proceedings in respect of the petitioners’ overbreadth charge. Noting that invalidating a
statute for being overbroad is “not to be taken lightly, much less to be taken in the dark,”
the court held:

The governing case is Broadrick, which introduced the doctrine

of "substantial" overbreadth in a closely analogous case. Under
Broadrick, when one who challenges a law has engaged in
constitutionally unprotected conduct (rather than unprotected speech)
and when the challenged law is aimed at unprotected conduct, "the
overbreadth of a statute must not only be real, but substantial as well,
judged in relation to the statute's plainly legitimate sweep." Two major
uncertainties attend the doctrine: how to distinguish speech from
conduct, and how to define "substantial" overbreadth. We are spared the
first inquiry by Broadrick itself. The plaintiffs in that case had solicited
support for a candidate, and they were subject to discipline under a law
proscribing a wide range of activities, including soliciting contributions for
political candidates and becoming a candidate. The Court found that this
combination required a substantial overbreadth approach. The facts of
this case are so similar that we may reach the same result without
worrying unduly about the sometimes opaque distinction between
speech and conduct.

18
 The second difficulty is not so easily disposed of. Broadrick
found no substantial overbreadth in a statute restricting partisan
campaigning. Pawtucket has gone further, banning participation in
nonpartisan campaigns as well. Measuring the substantiality of a
statute's overbreadth apparently requires, inter alia, a rough balancing of
the number of valid applications compared to the number of potentially
invalid applications. Some sensitivity to reality is needed; an invalid
application that is far-fetched does not deserve as much weight as one
that is probable. The question is a matter of degree; it will never be
possible to say that a ratio of one invalid to nine valid applications makes
a law substantially overbroad. Still, an overbreadth challenger has a duty
to provide the court with some idea of the number of potentially invalid
applications the statute permits. Often, simply reading the statute in the
light of common experience or litigated cases will suggest a number of
probable invalid applications. But this case is different. Whether the
statute is overbroad depends in large part on the number of elections
that are insulated from party rivalry yet closed to Pawtucket employees.
For all the record shows, every one of the city, state, or federal elections
in Pawtucket is actively contested by political parties. Certainly the record
suggests that parties play a major role even in campaigns that often are
entirely nonpartisan in other cities. School committee candidates, for
example, are endorsed by the local Democratic committee.

The state of the record does not permit us to find overbreadth;

indeed such a step is not to be taken lightly, much less to be taken in the
dark. On the other hand, the entire focus below, in the short period
before the election was held, was on the constitutionality of the statute as
applied. Plaintiffs may very well feel that further efforts are not justified,
but they should be afforded the opportunity to demonstrate that the
charter forecloses access to a significant number of offices, the
candidacy for which by municipal employees would not pose the
possible threats to government efficiency and integrity which Letter
Carriers, as we have interpreted it, deems significant. Accordingly, we
remand for consideration of plaintiffs' overbreadth claim. (italics supplied,
citations omitted)

Clearly, Letter Carriers, Broadrick, and Magill demonstrate beyond doubt

that Mancuso v. Taft, heavily relied upon by the ponencia, has effectively been
overruled. As it is no longer good law, the ponencia’s exhortation that “[since] the
Americans, from whom we copied the provision in question, had already stricken down a
similar measure for being unconstitutional[,] it is high-time that we, too, should follow suit”
is misplaced and unwarranted.

Accordingly, our assailed Decision’s submission that the right to run for public office is “inextricably
linked” with two fundamental freedoms – those of expression and association – lies on barren ground.
American case law has in fact never recognized a fundamental right to express one’s political views
through candidacy, as to invoke a rigorous standard of review. Bart v. Telford pointedly stated that
“[t]he First Amendment does not in terms confer a right to run for public office, and this court has held that
it does not do so by implication either.” Thus, one’s interest in seeking office, by itself, is not entitled to
constitutional protection. Moreover, one cannot bring one’s action under the rubric of freedom of
association, absent any allegation that, by running for an elective position, one is advancing the political
ideas of a particular set of voters.

Prescinding from these premises, it is crystal clear that the provisions challenged in the case at bar,
are not violative of the equal protection clause. The deemed-resigned provisions substantially serve
governmental interests (i.e., (i) efficient civil service faithful to the government and the people rather than

19
to party; (ii) avoidance of the appearance of “political justice” as to policy; (iii) avoidance of the danger of a
powerful political machine; and (iv) ensuring that employees achieve advancement on their merits and
that they be free from both coercion and the prospect of favor from political activity). These are interests
that are important enough to outweigh the non-fundamental right of appointive officials and employees to
seek elective office.

En passant, we find it quite ironic that Mr. Justice Nachura cites Clements v. Fashing and Morial,
et al. v. Judiciary Commission of the State of Louisiana, et al. to buttress his dissent. Maintaining that
resign-to-run provisions are valid only when made applicable to specified officials, he explains:

…U.S. courts, in subsequent cases, sustained the constitutionality of resign-to-run

provisions when applied to specified or particular officials, as distinguished from all
others, under a classification that is germane to the purposes of the law. These
resign-to-run legislations were not expressed in a general and sweeping provision,
and thus did not violate the test of being germane to the purpose of the law, the
second requisite for a valid classification. Directed, as they were, to particular officials,
they were not overly encompassing as to be overbroad. (emphasis in the original)
This reading is a regrettable misrepresentation of Clements and Morial. The resign-to-run
provisions in these cases were upheld not because they referred to specified or particular officials (vis-à-
vis a general class); the questioned provisions were found valid precisely because the Court deferred
to legislative judgment and found that a regulation is not devoid of a rational predicate simply
because it happens to be incomplete. In fact, the equal protection challenge in Clements revolved
around the claim that the State of Texas failed to explain why some public officials are subject to the
resign-to-run provisions, while others are not. Ruled the United States Supreme Court:

Article XVI, § 65, of the Texas Constitution provides that the holders of certain
offices automatically resign their positions if they become candidates for any other
elected office, unless the unexpired portion of the current term is one year or less. The
burdens that § 65 imposes on candidacy are even less substantial than those imposed by
§ 19. The two provisions, of course, serve essentially the same state interests. The
District Court found § 65 deficient, however, not because of the nature or extent of the
provision's restriction on candidacy, but because of the manner in which the offices are
classified. According to the District Court, the classification system cannot survive equal
protection scrutiny, because Texas has failed to explain sufficiently why some elected
public officials are subject to § 65 and why others are not. As with the case of § 19, we
conclude that § 65 survives a challenge under the Equal Protection Clause unless
appellees can show that there is no rational predicate to the classification scheme.

The history behind § 65 shows that it may be upheld consistent with the "one
step at a time" approach that this Court has undertaken with regard to state regulation
not subject to more vigorous scrutiny than that sanctioned by the traditional principles.
Section 65 was enacted in 1954 as a transitional provision applying only to the 1954
election. Section 65 extended the terms of those offices enumerated in the provision from
two to four years. The provision also staggered the terms of other offices so that at least
some county and local offices would be contested at each election. The automatic
resignation proviso to § 65 was not added until 1958. In that year, a similar automatic
resignation provision was added in Art. XI, § 11, which applies to officeholders in home
rule cities who serve terms longer than two years. Section 11 allows home rule cities the
option of extending the terms of municipal offices from two to up to four years.

Thus, the automatic resignation provision in Texas is a creature of the State's

electoral reforms of 1958. That the State did not go further in applying the automatic
resignation provision to those officeholders whose terms were not extended by § 11 or §
65, absent an invidious purpose, is not the sort of malfunctioning of the State's
lawmaking process forbidden by the Equal Protection Clause. A regulation is not devoid
of a rational predicate simply because it happens to be incomplete. The Equal Protection

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 Clause does not forbid Texas to restrict one elected officeholder's candidacy for another
elected office unless and until it places similar restrictions on other officeholders. The
provision's language and its history belie any notion that § 65 serves the invidious
purpose of denying access to the political process to identifiable classes of potential
candidates. (citations omitted and italics supplied)

Furthermore, it is unfortunate that the dissenters took the Morial line that “there is no blanket
approval of restrictions on the right of public employees to become candidates for public office” out of
context. A correct reading of that line readily shows that the Court only meant to confine its ruling to the
facts of that case, as each equal protection challenge would necessarily have to involve weighing
governmental interests vis-à-vis the specific prohibition assailed. The Court held:

The interests of public employees in free expression and political association are
unquestionably entitled to the protection of the first and fourteenth amendments. Nothing
in today's decision should be taken to imply that public employees may be prohibited
from expressing their private views on controversial topics in a manner that does not
interfere with the proper performance of their public duties. In today's decision, there is no
blanket approval of restrictions on the right of public employees to become candidates for
public office. Nor do we approve any general restrictions on the political and civil rights of
judges in particular. Our holding is necessarily narrowed by the methodology employed
to reach it. A requirement that a state judge resign his office prior to becoming a
candidate for non-judicial office bears a reasonably necessary relation to the
achievement of the state's interest in preventing the actuality or appearance of judicial
impropriety. Such a requirement offends neither the first amendment's guarantees of free
expression and association nor the fourteenth amendment's guarantee of equal
protection of the laws. (italics supplied)

Indeed, the Morial court even quoted Broadrick and stated that:

In any event, the legislature must have some leeway in determining which of its
employment positions require restrictions on partisan political activities and which may be
left unregulated. And a State can hardly be faulted for attempting to limit the positions
upon which such restrictions are placed. (citations omitted)

V.
Section 4(a) of Resolution 8678, Section 13 of RA 9369,
and Section 66 of the Omnibus Election Code
Do Not Suffer from Overbreadth

Apart from nullifying Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of
the Omnibus Election Code on equal protection ground, our assailed Decision struck them down for being
overbroad in two respects, viz.:

(1) The assailed provisions limit the candidacy of all civil servants holding appointive posts
without due regard for the type of position being held by the employee seeking an elective
post and the degree of influence that may be attendant thereto; and
(2) The assailed provisions limit the candidacy of any and all civil servants holding appointive
positions without due regard for the type of office being sought, whether it be partisan or
nonpartisan in character, or in the national, municipal or barangay level.

Again, on second look, we have to revise our assailed Decision.

i. Limitation on Candidacy Regardless of

Incumbent Appointive Official’s Position, Valid

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 According to the assailed Decision, the challenged provisions of law are overly broad because
they apply indiscriminately to all civil servants holding appointive posts, without due regard for the type of
position being held by the employee running for elective office and the degree of influence that may be
attendant thereto.

Its underlying assumption appears to be that the evils sought to be prevented are extant only
when the incumbent appointive official running for elective office holds an influential post.

Such a myopic view obviously fails to consider a different, yet equally plausible, threat to the
government posed by the partisan potential of a large and growing bureaucracy: the danger of systematic
abuse perpetuated by a “powerful political machine” that has amassed “the scattered powers of
government workers” so as to give itself and its incumbent workers an “unbreakable grasp on the reins of
power.” As elucidated in our prior exposition:

Attempts by government employees to wield influence over others or to make

use of their respective positions (apparently) to promote their own candidacy may seem
tolerable – even innocuous – particularly when viewed in isolation from other similar
attempts by other government employees. Yet it would be decidedly foolhardy to discount
the equally (if not more) realistic and dangerous possibility that such seemingly disjointed
attempts, when taken together, constitute a veiled effort on the part of an emerging
central party structure to advance its own agenda through a “carefully orchestrated use of
[appointive and/or elective] officials” coming from various levels of the bureaucracy.

…[T]he avoidance of such a “politically active public work force” which could give
an emerging political machine an “unbreakable grasp on the reins of power” is reason
enough to impose a restriction on the candidacies of all appointive public officials without
further distinction as to the type of positions being held by such employees or the degree
of influence that may be attendant thereto. (citations omitted)

ii. Limitation on Candidacy

Regardless of Type of Office Sought, Valid

The assailed Decision also held that the challenged provisions of law are overly broad because
they are made to apply indiscriminately to all civil servants holding appointive offices, without due regard
for the type of elective office being sought, whether it be partisan or nonpartisan in character, or in the
national, municipal or barangay level.

This erroneous ruling is premised on the assumption that “the concerns of a truly partisan office
and the temptations it fosters are sufficiently different from those involved in an office removed from
regular party politics [so as] to warrant distinctive treatment,” so that restrictions on candidacy akin to
those imposed by the challenged provisions can validly apply only to situations in which the elective office
sought is partisan in character. To the extent, therefore, that such restrictions are said to preclude even
candidacies for nonpartisan elective offices, the challenged restrictions are to be considered as
overbroad.

Again, a careful study of the challenged provisions and related laws on the matter will show that
the alleged overbreadth is more apparent than real. Our exposition on this issue has not been
repudiated, viz.:

A perusal of Resolution 8678 will immediately disclose that the rules and
guidelines set forth therein refer to the filing of certificates of candidacy and nomination of
official candidates of registered political parties, in connection with the May 10, 2010
National and Local Elections. Obviously, these rules and guidelines, including the
restriction in Section 4(a) of Resolution 8678, were issued specifically for purposes of the
May 10, 2010 National and Local Elections, which, it must be noted, are decidedly

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 partisan in character. Thus, it is clear that the restriction in Section 4(a) of RA 8678
applies only to the candidacies of appointive officials vying for partisan elective posts in
the May 10, 2010 National and Local Elections. On this score, the overbreadth challenge
leveled against Section 4(a) is clearly unsustainable.

Similarly, a considered review of Section 13 of RA 9369 and Section 66 of the

Omnibus Election Code, in conjunction with other related laws on the matter, will confirm
that these provisions are likewise not intended to apply to elections for nonpartisan public
offices.

The only elections which are relevant to the present inquiry are the elections for
barangay offices, since these are the only elections in this country which involve
nonpartisan public offices.

In this regard, it is well to note that from as far back as the enactment of the
Omnibus Election Code in 1985, Congress has intended that these nonpartisan
barangay elections be governed by special rules, including a separate rule on deemed
resignations which is found in Section 39 of the Omnibus Election Code. Said provision
states:

Section 39. Certificate of Candidacy. – No person shall be elected

punong barangay or kagawad ng sangguniang barangay unless he files
a sworn certificate of candidacy in triplicate on any day from the
commencement of the election period but not later than the day before
the beginning of the campaign period in a form to be prescribed by the
Commission. The candidate shall state the barangay office for which he
is a candidate.

xxxx

Any elective or appointive municipal, city, provincial or national official or

employee, or those in the civil or military service, including those in
government-owned or-controlled corporations, shall be considered
automatically resigned upon the filing of certificate of candidacy for a
barangay office.

Since barangay elections are governed by a separate deemed resignation rule,

under the present state of law, there would be no occasion to apply the restriction on
candidacy found in Section 66 of the Omnibus Election Code, and later reiterated in the
proviso of Section 13 of RA 9369, to any election other than a partisan one. For this
reason, the overbreadth challenge raised against Section 66 of the Omnibus Election
Code and the pertinent proviso in Section 13 of RA 9369 must also fail.

In any event, even if we were to assume, for the sake of argument, that Section 66 of the
Omnibus Election Code and the corresponding provision in Section 13 of RA 9369 are general rules that
apply also to elections for nonpartisan public offices, the overbreadth challenge would still be futile. Again,
we explained:

In the first place, the view that Congress is limited to controlling only partisan
behavior has not received judicial imprimatur, because the general proposition of the
relevant US cases on the matter is simply that the government has an interest in
regulating the conduct and speech of its employees that differs significantly from those it
possesses in connection with regulation of the speech of the citizenry in general.

Moreover, in order to have a statute declared as unconstitutional or void on its

face for being overly broad, particularly where, as in this case, “conduct” and not “pure

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 speech” is involved, the overbreadth must not only be real, but substantial as well, judged
in relation to the statute’s plainly legitimate sweep.

In operational terms, measuring the substantiality of a statute’s overbreadth

would entail, among other things, a rough balancing of the number of valid applications
compared to the number of potentially invalid applications. In this regard, some sensitivity
to reality is needed; an invalid application that is far-fetched does not deserve as much
weight as one that is probable. The question is a matter of degree. Thus, assuming for
the sake of argument that the partisan-nonpartisan distinction is valid and necessary
such that a statute which fails to make this distinction is susceptible to an overbreadth
attack, the overbreadth challenge presently mounted must demonstrate or provide this
Court with some idea of the number of potentially invalid elections (i.e. the number of
elections that were insulated from party rivalry but were nevertheless closed to appointive
employees) that may in all probability result from the enforcement of the statute.

The state of the record, however, does not permit us to find overbreadth.
Borrowing from the words of Magill v. Lynch, indeed, such a step is not to be taken
lightly, much less to be taken in the dark, especially since an overbreadth finding in this
case would effectively prohibit the State from ‘enforcing an otherwise valid measure
against conduct that is admittedly within its power to proscribe.’

This Court would do well to proceed with tiptoe caution, particularly when it comes to the
application of the overbreadth doctrine in the analysis of statutes that purportedly attempt to restrict or
burden the exercise of the right to freedom of speech, for such approach is manifestly strong medicine
that must be used sparingly, and only as a last resort.

In the United States, claims of facial overbreadth have been entertained only where, in the
judgment of the court, the possibility that protected speech of others may be muted and perceived
grievances left to fester (due to the possible inhibitory effects of overly broad statutes) outweighs the
possible harm to society in allowing some unprotected speech or conduct to go unpunished. Facial
overbreadth has likewise not been invoked where a limiting construction could be placed on the
challenged statute, and where there are readily apparent constructions that would cure, or at least
substantially reduce, the alleged overbreadth of the statute.

In the case at bar, the probable harm to society in permitting incumbent appointive officials to
remain in office, even as they actively pursue elective posts, far outweighs the less likely evil of having
arguably protected candidacies blocked by the possible inhibitory effect of a potentially overly broad
statute.

In this light, the conceivably impermissible applications of the challenged statutes – which are, at
best, bold predictions – cannot justify invalidating these statutes in toto and prohibiting the State from
enforcing them against conduct that is, and has for more than 100 years been, unquestionably within its
power and interest to proscribe. Instead, the more prudent approach would be to deal with these
conceivably impermissible applications through case-by-case adjudication rather than through a total
invalidation of the statute itself.

Indeed, the anomalies spawned by our assailed Decision have taken place. In his Motion for
Reconsideration, intervenor Drilon stated that a number of high-ranking Cabinet members had already
filed their Certificates of Candidacy without relinquishing their posts. Several COMELEC election officers
had likewise filed their Certificates of Candidacy in their respective provinces. Even the Secretary of
Justice had filed her certificate of substitution for representative of the first district of Quezon province last
December 14, 2009 – even as her position as Justice Secretary includes supervision over the City and
Provincial Prosecutors, who, in turn, act as Vice-Chairmen of the respective Boards of Canvassers. The
Judiciary has not been spared, for a Regional Trial Court Judge in the South has thrown his hat into the
political arena. We cannot allow the tilting of our electoral playing field in their favor.

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 For the foregoing reasons, we now rule that Section 4(a) of Resolution 8678 and Section 13 of
RA 9369, which merely reiterate Section 66 of the Omnibus Election Code, are not unconstitutionally
overbroad.

IN VIEW WHEREOF, the Court RESOLVES to GRANT the respondent’s and the intervenors’
Motions for Reconsideration; REVERSE and SET ASIDE this Court’s December 1, 2009 Decision;
DISMISS the Petition; and ISSUE this Resolution declaring as not UNCONSTITUTIONAL (1) Section 4(a)
of COMELEC Resolution No. 8678, (2) the second proviso in the third paragraph of Section 13 of
Republic Act No. 9369, and (3) Section 66 of the Omnibus Election Code.

SO ORDERED.

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